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1 

2 

3 

1 

2 

3 

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5 

6 

SPEECH 


g> 


OF 


MR.  CHOATE,  OF  MASSACHUSETTS, 


ON    TUB    CASE    OF 


AliDXAI^'DER  McLEOD. 


3KI.rT£RED 


IN  THE   SENATE    OF  THE   U.NITED   STATES. 


June  ]1,  1841. 


WA  S  H I N  G  T  O  N : 

PBIRTKU  AT  THE  KATIORAL  INTELLIOXHCER  OFPICB. 
1841. 


M 


<   > 


I 


*  \  '• 


SPEECH 


M 


* 


<       » 


t 


/  V 


4 


^u         rnn  of  Mr   Rives  to  refer  so  much  of  the  P.esi.lent's  Message 

as^r;:::  i!' i^  :^i'-^  to  ..  Co..niUee  on  Fore.n  A..i.s  .e.g 

under  consideration--  ^^  ^^^^^^^   ^  ^^^^,^^^^t  ^f 

Mr.  Choate  «;;^^  l^.'^J^I^^J   3^^rdiscus'sion   which  couhi  produce  no 
the  crowded  time  ot  the   senate  \n  '»  ,  .,     f,iendsot  the  Sec- 

practical  results.     But  the  suhject  wa   fo, ced  uj  on  t,  c  ^^^^^  ^^  .^_ 

?etary  of  State  and  ^^  i»^t  ^dministn  tion     it    os.c^^^^^^^     g  ^^^^.^^^  ,„ 

terest  intrinsically,  and  {^'^r^fl^'-^.'jlf  .  "^ti^.^J:,  "  an mopriatHy  to  beh.n^, 
Foreign  Relations,  to  who.n  'V'^'^L.n!!  it  ess  matin cly  considered 
he  ventured  to  submit  a  few  ^J-|^^  ^^^^^  ,ou^^  to\he  splendid 

than  he  could  have  wished.     \  ^/^^^^^^^^^^  (M,,  Khes.) 

and  masterly  speech  ^^f  ^.^enf  or  Horn  V  . r  i      ,  ^  ^,^^  ,^j^^^ 

I  confess  (he  P>:«^f  ^'^^f ){  f  ^^'i'"  ,  .S  the  Senator  fro:n  I'cnnsyl- 
ofthe  Secretary  01  State  to  Mr.  Fox  on  wm^  ^^^.^^^^^   ^^.^^^ 

vania  (Mr.  Buchanan)  has  commento.i,  It  j^cenc  .,,,      ,,t  ,nd 

much  ability,  and  that  it  ought  to  and  ^vould  sati  1  J     b  ^  ^^ 

feelings  of  the  whole  American  P^'^P^^'  .^^l^^^^^;  . 'Vot   a.  unimportant 
sound;  clear,  and  --^^^^^deT^o   ru^  ,  -/timid; 

consideration,  good;  ^^'^a"^^' ^^^^'7^"°' '        '  national,   American— 

and  the  wholo  tone,  temper,  and  ^^»^J^^ij;:^^^?|,;objectic'ns  taken  to  it 
worthy  of  the  man,  tl^e  cause   and   he  ^o  >n  i  J        conceding  just 

in  this  debate  seemed  to  me  to  ^e   ^s  cssen  j         ^  ^,^^     j^ 

^vhat  he  did,  and  by  denying  jus  ^  at  ^JJ^  '  '^^.^^^  ^^^  f.lse' position  it 
to  withdraw  this  controversy  ^^°"\^''^,.>^';,,X„t  jt  „,ay  be  adjusted  with 
rested  upon  ;  and  to  place  it  «^V",f\|7;t^^^  t^^  /^^^^  baltle  the  ap- 
ease  and  honor,  or,  il  we  must  ^'^'^'i'^f''^^^^^  just  pride. 

probation  of  our  own  ^o'-'^^^^^^^^'.^^if  j,^VJemen,  or,  at  least,  one  other, 
So  the  letter  struck  my  mmd      01    «S^^^^^^^^  by  the 

regard  it  differently.  And  in  the  ^^^'^^  P^^"^:  ^^°,.  ^^^  concession  of  the 
distinguished  Senator  fro-n  P^""«>'V;"^„Ved    am^^^^^^  '^  ^"^'''^^ 

Secretary  that  a  person  in  the  ««^^^^^  .^^  PJ^^fj^^^^  law.     He 

to  immunity,  assumes  an  "^/j^^^^.^  .P/X  .iinion  that  we  may  well  enough 
.      argues  that  it  does  not  -and  he  hold  the  op  "lon^tn  ,^  ^^^.^^ 

hang  that  person  for  robbery  and  mudertha^^  ^^^^^  ^^  ^^^ 

conformity  with  the  r^^^/ived  amelm  ated  ^^^^^^^  __^^^^^^  ^  ^^^^,.^^^^.  ^^ 

nineteenth  century,  and  ^^^hou  ju  t  y  bnngin„  individual  of  any 

disapprobation  from  any  of  the  f^""'^^«^^°;.  7"\i°i*3  Jeat  question  of  the 
family.      Sir,  let  us  pause  for  a  moment  on  tins  grcai    i 

nations.  .  c^«,.o*orv  nf  State  '      Why  only  and  cx- 

What  is  the  concession  of  the  ^/^'^^'^^jl^^^ 


•    • 


Clime  a|i;ainst  the  municipal  code  of  the  country  upon  which  he  thus  helps 
to  cany  war  ;  that  he  is  not  punishable  as  lor  such  crime  by  that  country  ; 
and  that  the  responsibility  rests  upon  his  own  Government  alone  to  an- 
swer, as  nations  answer  ior  their  crimes  to  their  equals.  That  is  the  con- 
cession. He  docs  not  deal  at  all  with  the  case  of  a  soldier  straggling  away 
from  his  colors  to  commit  a  solitary  and  separate  murder.  He  does  not 
deal  with  a  case  of  alleged  excess  of  authority.  He  supposes  him  to  obey 
the  precise  directions  of  his  Government,  and,  so  doing,  he  declares  him 
clothed  with  a  personal  imnuinity. 

It  has  h'^en  said  in  some  of  the  discussions  of  this  subject,  although  not 
here,  that  Mcl^eod  left  the  Caroline  alter  the  whole  object  of  the  enter- 
prise had  been  accomplished,  and  committed  an  unnecessary  and  distinct 
and  malicious  murder  on  shore.  I  can  say  only  to  this  that  no  such  fact 
forms  any  part  of  the  basis  of  the  opinion  of  the  Secretary,  He  had  either 
never  heard  r>f  it,  or  he  disbelieved  it,  or  he  assumed  that  the  courts  of  law 
or  the  Attorney  General  would  allow  its  proper  influence  to  a  discriminat- 
ing circumstance  so  important. 

if  you  turn  to  the  fourth  page  of  his  letter  you  nriy  see  that  the  murder 
for  which  he  supposes  McLcod  is  indicted  was  "  a  murder  alleged  to  have 
been  committed  in  the  attack  ,"  forming  an  inseparable,  very  painful  part 
of  the  entire  military  violence  exerted  to  capture  and  destroy  the  vessel, 
and  not  succeeding  it.  For  the  purposes  of  the  concession,  he  ti-.'ces  for 
true  the  express  declaration  of  Mr.  Fox,  "  that  the  transaction  on  account 
of  which  Mr.  McLeod  has  been  arrested  and  is  to  bo  put  on  his  trial," 
including  the  homicide  as  an  unavoidable  incident  in  it,  "  was  a  public 
transaction"  conducted  by  Her  Majesty's  Government. 

Such  is  the  concession.  I  have  the  honor  to  submit, /rs/,  that  the  con- 
cession is  right  in  point  of  international  law  ;  and  then,  that  it  was  the 
duty  of  the  Secretary  of  State  to  make  it,  and  of  the  Government  to  act 
upon  it,  exactly  as  it  was  made  and  acted  upon. 

In  entering  on  ihis  investigation,  then,  you  observe  that,  to  a  certain 
distance,  we  proceed  on  all  sides  of  the  Senate  harmoniously  together. 

Thus,  it  is  admitted  by  the  Senator  from  Pennsylvania,  and"^  by  every 
body,  that  persons  taken  fighting,  or  for  having  fought,  in  the  battles  of  an 
open,  general,  regularly  declared  war,  are  not  responsible  as  for  crime 
committed  by  the  act  of  fighting  against  the  country  which  they  devastate 
and  wrap  in  mourning  and  blood.  They  become  technically  prisoners  of 
war.  As  such,  on  a  principle  of  policy,  as  a  mode  of  prosecuting  war, 
they  are  subjected  to  restraint,  imprisoned,  held  to  ransom,  exchanged, 
and  otherwise  disposed  of,  with  more  or  less  indulgence  and  humanity, 
according  to  circumstances.  But  criminals,  robbers,  murderers,  by  the 
act  of  fighting,  although  the  act  involved  the  destruction  of  property  and 
life,  they  are  not,  by  the  theory  or  practice  of  any  civilized  race  of  men. 

Thus  far  we  proceed  together.  On  this  admitted  principle  we  all 
stand  ;  and  from  this  we  all  take  our  departure.  The  truth  is,  the  na- 
tions have  agreed,  and  that  agreement  makes  the  law  of  nations,  that  it  is 
a  duty  and  a  virtue  in  the  individual  citizen,  his  first  duty,  his  highest  vir- 
tue, to  be  obedient  to  his  own  Government.  They  have  agreed  to  re* 
gard  him,  as  our  own  Decatur,  the  elder  Decatur,  said  of  his  children,  as 
the  property  of  his  country.  Withersoever  he  goes,  whatsoever  he  does, 
wheresover  he  lies  down  slain  in  battle,  in  obedience  to  her  sacred  and 
parental  command,  it  is,  as  the  general  rule,  not  imputed  to  him  for  crime 


J> 


} 


I       I      < 


..l> 


1 


the  general  eon5e.a«i  2''";md,,^,;;     'a  nulion  ^^^  „,^  eomm.nJ  of  the 
whatsoever  is  done  by  the  nicmucis  m  ^     pub  c, 

p'?^'"'°::tt:ar:-'::d?-hori"Xurl^-^ 

IS  the  act  of  the  nation  ,  auu  i  ^.  nation,  and  not  ui'on  the 

.„e  ,aw  of  nations  .s  charge,    e     p  n^x,,._  ~.t,o.^,  ^^^^ ^  ^ 

Terr^triX  ..e  p,.rticu.„r  f^-f  ™,  ^'i  "i^-'f  ;^^  ":';:ot 

lion,  is,  by  the  law  of  natrons,  "o  P«  ■^o"     ,  i    hw   for  any'  act  in  which 
therefore,  l>«  P""-''^^^'  ^""^^^  ."/l^I  ''a''d't ho    a.ion  a's  the  agcnt.'^ 
it  considers  them  only  »\"f ,'""'"""  "J,-' '.  i,„aics  of  troops  wliicli,  dur- 

f  d '^Urth^-'r^i't^ndTL'ToSld'^rre  tZ  ^Sed  gnil.y  of  a  eri^e 

against  any  law  of  a  State  or  of  the  Lnion  ^^^^^ 

"setting  out  from  this  adnnjt.d  F"  ^'l'^^^^^^^^^^^^^^^  hiai 

the  specbl  circumstances  under  ^^^^^^    ^^/j^^j^'^t^^ar^^^^^^  Uim  from  the  pre 

forth  to  this  midnight  work  «  . f.;,^fy ^^^^^^^^  humanity  and 

tection  of  the  prmc.p  e  o   »"f  ^^'^^^VnTv^of^^^^^^  What  were  those 

.visdom  have  re  ieved  and  adorned  ^^^^^^  ^^  ^^.^^^.    ^^ 

special  circumstances  ?     hxactly  I'^ese      ix  exnedition  of  force, 

/L/o,  for  the  ti-,  for  f  ac.  rn  a  nnl^^^^^^^^^^^^^  TofjZU  having  the 

planned  and  sent  abroad  b>  ^'  ^'J  ^^^a'^/^ni  is  blood  :  sent  abroad,  not  to 

right  to  exact  h.s  «^^^'^\*°,*^'",^'?  ,„  ^^n  it  called  him  out  of  his  bed, 
plunder,  but,  as  it  represented  to  him  when  u  c .  i  ^^ 

Ld  disclosed  its  purpose,  to  do  -  ^  .  ^^^ jf^^n^^ie  '  ct,  not  pree'eded 
liorlia^^njXr.^S^J^^^ 

principle  of  personal  •■e^Po^f^'^d'^  proceeding  to  determine  whether  that 
Let  me  say,  then,  f^ist,  that  mproceeam  .^  ^^^ 

principle  shall  or  not  be  ^PP^/^^J.^^  %given  sp^^^^^^^^^  «    ^^^^^^ 

^ver-varying  developments  f ,  f  "f '  ^"  ^^  '^^  S  and  liberally  '  fa- 
Avill  be,  and  ought  to  be,  to  take  V^^^  .P'";Xi4''«„Xnal  responsibility, 
vor  of  individual  immunity,  and  ot  /''^^f ';\ ^nSe  into  the  law  bf 
Every  motive  which  operated  to  ^"/^od^^.'^^^^a  ben?«naK^  and 

nations  at  first,  is  a  motive  to  an  ^"^^^'f^.^.^jl^'Sd  a^       advance  on 
application  of  it  to-day.     »ts  adoption  oiginUym^^^^^^^^  ^ 

the  ferocious  systems  of  ^'l^^/^^^^^^^^^'^^trand  wisdom  carried  the 
triumph  of  reason  as  well  as  o  humanity.  Po^  ^J'^  .^;^ \^  t,  relieve  war 
.vorld'up  to  it,  as  wel  as  "ght  fe^  ^f  ^^  e  s  er  t  g  Wk  to  peace,  which 
of  its  horrors  while  it  lasted  ;  to  "^^^^.l^^^^.^;  '  f.^^  ^^t  of  the  millions 
is  the  true  condition  of  man  ;  to  am^  ^'^^e  th^  ^^  "  ^^^/^^  ^,.  ,,i,asra 
whom,  in  one  age  and  m  one  ^ouu^/^^f'i-f'  'up  ^^^^  itsllf  from  a 
crowds  into  the  ranks  of  their  country  ;  and  to  ^^^^^PJJ^^  ^^  ^^  -^ 
vul-ar  and  dreary  business  ot  general  but.he.j  to  a  se .     ,. 


6 


4 


which  f^roat  >?otiIs  may  en^.igo  without  (lofj^.adation  and  without  detcrio- 
ralion.  These  were  the  motives  in  wliicdi  the  principle  was  made  part  at 
fust  of  the  I nv  of  nations,  and  every  one  of  them  is  a  motive  to  fiivc  it 
the  n)o-.t  cxp  iM'led  ;:})p!ication  in  the  light  of  this  hotter  day.  Sir,  it  is 
one  of  l!ie  htightes-t  f;h)iies  of  civili/ution.  Do  not  cause  it  to  ho  dimmed 
by  a  penurious  and  reluctant  interpretation  and  application  !  To  do  so 
would  he  to  misconceive  the  direction  in  which  the  world  is  moving.  ( 
i]o  not  know  when  wars  shuli  wholly  cease,  hut  I  helicve,  I  trust,  that  as 
the  world  comes  nearer  to  that  time,  it  will  regard  war  more  and  more 
pvcry  day  as  an  enormous  evil,  if  a  necessary  evil,  and  will  desire  to  re- 
lieve if,  more  and  more  every  day,  hy  the  tWlices  of  Christian  and  of  chiv- 
alrous fotheirance  towards  individual  actors,  struck  down,  disariiied,  and 
uniesisting. 

Giving,  then,  to  the  law  of  personal  immunity  that  enlarged  effect 
which  the  time  and  the  country  demand,  let  us  attend  to  the  special  cir- 
cumstances, one  hy  one,  which  mark  the  case  of  McLeod,  and  see  if  they 
do  or  do  not  leave  him  the  protection  which  is  thrown  round  the  captive 
of  open,  regular  war. 

In  the  fust  place,  ohserve  that  the  expedition  on  which  he  went  out 
was  an  expedilion  oi  war.  It  was  not  an  expedition  to  rob  the  mail,  or 
to  loh  a  hen  roost,  or  to  throw  an  assassin  or  spy  into  an  enemy's  camp, 
by  which  happy  analogies  we  have  had  it  illustrated.  It  was  an  enter- 
prise of  war ;  undertaken  imder  the  iron  responsibilities,  surrounded  by 
the  iron  rights  of  war.  Its  exact  legal  denomination  is  ^^  infonnnl,  in- 
solemn  hostUil >).''''  Let  us  call  things  by  their  right  names,  and  hold  t^ng- 
land  and  hold  ourselves  up  consistently  to  this  view  of  the  transaction. 
Look  at  it.  There  was  a  for»;iblc  temporary  occupation  of  our  territory 
by  an  armed  foreign  body,  acting  in  organization,  sent  across  by  a  foreign 
Government,  as  a  Government,  not  for  plunder,  but  as  an  alleged  grave 
measure  of  state  policy — for  the  alleged  defence  of  its  own  soil  and  its 
own  law  against  revolutionary  invaders  fiom  without.  What  sort  of  act 
is  that,  sir?  The  mover  is  a  Government ;  the  inducement  a  high  reason 
of  state  ;  the  instruments  and  the  effects  such  as  ordinarily  do  the  work, 
and  mark  the  giant  tread  of  war.  Armed  men  violently  assail  a  vessel 
moored  on  our  waters,  owned  by  our  citizens,  reposing,  as  we  allege,  be- 
neath the  protection,  not  forfeited,  of  the  folds  of  our  flag.  It  is  the  cry 
of  brief  but  actual  battle,  which  rises  above  the  murmur  of  that  onward, 
unreturning  stream.  The  peace  of  our  territory  was  disturbed,  its  sanctity 
was  violated,  the  charmed  life  of  an  American  citizen  was  taken  in  fight, 
the  property  of  an  American  citizen,  itself  part  of  the  general  wealth  of 
the  community,  was  destroyed.  This,  sir,  in  the  language  of  the  publi- 
cists, is  "  informal  hostility"  against  the  United  States,  and  the  responsi- 
bility of  England,  who  ordered  it  to  be  committed,  and  the  immunity  of 
the  soldiers  who  enforced  the  order  with  the  bayonet  and  cutlass,  result, 
of  course,  according  to  the  principle  on  which,  as  I  have  said,  we  all  take 
our  stand,  and  in  which  all  publicists  agree.  I  do  not  say  that  by  this  act 
England  intended  to  begin  a  war  on  the  United  States,  or  to  impair  our 
strength,  diminish  our  treasure,  or  insult  our  flag  as  a  nation.  Certainly 
not.  But  the  act  which  she  does  is  to  ihvade  our  territory  forcibly  and 
unlawfully,  for  the  purpose  of  reaching  and  destroying  the  property  of  one 
of  our  citizens,  which  she  had  no  right  so  to  reach  and  so  to  destroy,  an 


I 


J 


to  cfl^et  that  pur^e  by  rrf^;;^:^::^!^^^^^ 
in  hatlle.  And  tins  act  ,9  »^;>«"''  ^ '^P;;;^  J,'  „„,,  the  processes,  and  ae- 
rated, and  they  are  outraged  \  ,\^'^^^^^^^^^^  nation  and  every  .nan 
cording  to  the  forms  0^^/''  ^  ^v  icli  he  does,  and  their  necessary  eon- 
must  be  hoUlen  to  intend  the  f.^^;^,,^  '^  .f^.^ecedins  iVom  the  attack  on 
seHuences.  ^'- do  you  <hst^m^^  Virginh.  alluded  last 
Copenhagen,  m  1808,  o  whicn  uc  p  |  i  cherishin-  no  hostile 
evening  ?     What  was  t»K^    transa  t  on  ?     E.^.laml      ^^^^^  ^  .  ^  ^^^.^^^ 

feeling  against  »^^n'"=^' ^.  '^"•;!  ^  T  ^^onceived  a  ear  that  that  ancient, 
against  the  F.mperor  ot  the  ,»^'e"*^^');XfU  before  him,  in  which  case 

gallant,  but  not  very  P"^''^^'"  .'^r^'trhis  -•  form^^^^^  "C''^^^'^"  '•>  '^^ 
Lr  six'teen  ships  of  war  -^^'l;* ''f  ^^"^J^j^ij'  ^  ^of  universal  do.ninion. 
strength  by  which  he  ^fV^J^g'^il^'to  Copenhagen,  bon.barded  it, 
Thereupon  she  sent  Admua  ^^"^  '^"^  ;°  'and  carried  olV  the  whole 
killed  and  wounded  above  'V;^  -";,;"f,/^^^^^  territory  for  the 

Danish  (leet.  That  .s  «^;.jj.^'^f '/iJ,";'',  p^  of  which,  as  against  Den- 
purpose  of  possessing  hcrse  t  o  t^'ve  ^^"  \^^  r^^  ^^^  purpose  of  weak- 
L.r'k,  she  had  no  right  [o  take  po^  s  i  n  ,  i.o^t^.^.        ,\  J^^^  ^,^ 

ening  or  insulting  her,  but  to  I  '^J^"^  ;"^jf  ^^  ,,ere.  She  invades  our 
instruments  of  annoyance  '^J?''^.«  .  ^/  ,^  ;,3e  "^  possessing  herself  of  a 
territory  with  military  'f''^^^'f"'  ^^'Jfn^o  tht  thus  to  take  possession; 
vessel,  of  which,  as  against  us  she  ^^^  ^  f  bein.,  in  other  hands,  the 
not  to  weaken  or  insult  us,  ^uto      event  .  s  t)      .,    ^^^  ^^.^^  ^^^^^  ^^ 

instrument  of  annoyance  ^^^^^.'f  Xle  national  rights  are  invaded.  In 
infonralwar  against  the  "f  ^«"  jj  f  „Vthe  i^^^^^  the  capture  ot 

the  affair  of  Copenhagen,  ^^'^.^^^f^  ^^^^^  jf^at,  it  had  been  Danish  mer- 
Danish  Government  ships.  J^^Jl^^f  ^^^  \^^\^,^  coffers  of  France,  or  to 
chant  ships,  lest  their  cargoes  might  S«  *«  "  ^^         ^.^^^  been  at  all  the 

transport  French  '""">t'°"«.^f,^;V'l''3,!^  >  Nay,  if  Denmark  had  been 
less  an  act  of  hostility  against  l^e"maik  •     my,  ^^^.^^  ^^^^  ^^^ 

neutral,  and  the  object  had  been  t«/"  ^"^  ^^  ^ '^;";„  ,  hostile  aggression 
to  Copenhagen  i;or  shelter.  It  would     til  have  ^^^^^  ^^^^  „p,„   , 

against  Denmark  herseli.  /.^^^^^Xe  more  slips,  more  men,  greater 
grander  scale  than  that  upon  the  Cai  oline  ,  ™°'  »  ^f  ,,,^,,.  But  the 
Lmes,a  more  P-^uresque  arrang^ement  o  t^^^^  ^  Sequences,  national  and 
essential  character,  the  ^^S^^  "^•"[; '.^VG^overnment  trespasses  on  the 

Latent  of  the  trespass,  war  on  the  ^;^,,,,  circumstance.     The 
But  I  advance  toj^  second  and  tar  mo.  e       p  ^^^^^  competent  to 

expedition  in  which  he  served  was  the  ««t  °^  '^  knowledge  or  ap- 

compel  him  to  serve.  Independent  of'^"^  P^\"'  '^^  \  ^^holly  .eject  the 
pZd  of  the  act  by  the  mother  country,  it  ^^"^  ^'^/..^uthorized  pro- 
Lggesstion  that  this  faring  enterpsew«a^  ^^^  ^^^  ^^  ^ 

celding  of  individuals,  and  that  ^  ^"^^^^^^^^  it  was  the  work  of  a 

ernment  by  ratitication  t'«'"  J^^^^""X"  the  right  to  exact  McLeod's 
Government,  and  of  a  Government  havin^  the  ig  ^^^  ...ducted  the 
obedience  to  the  last  urop  of  his  bloody    VV  ho  pi  ^^e  explicit 

attack  ?     The  colonial  authorities      buch  >«,   o  ^^^^  ^^^  ^^^^^ 

declaration  of  Mr.  Fox.     Such  is  the  Itgal  con^     ^^^    ^^^^^^^   ^^^^      g.^^ 

by  Sir  Francis  Head  i"  ^J*- .^^f  ^^^^e  coTonTai  authorities^  specially  .m- 
the  matter  stands  exactly  thus,     me  ^ 


8 


Kli 


powered  Colonel  McNah  to  defend  Her  Majesty's  territories,  and  to  de- 
fend Her  Majesty's  subjects.  Such  is  the  concurrent  Ntatcn)ent  of  Mr. 
Fox  and  Sir  Francis  Head.  For  this  purpose  they  expressly  empowered 
him  to  adopt  all  needful  defensive  measures,  and  they  thereby  clothed 
him  by  inevitable  imjilication  with  the  discretionary  power  of  judging 
what  measures  were  needful.  In  the  exercise  of  that  discretion,  he 
judged  this  measure  to  be  needful,  and  hq  adopted  it.  Now,  for  the  pro- 
tection of  the  soldiers  by  whom  it  was  achieved,  it  is  precisely  as  if  the 
colonial  authorities  had  directly  and  in  terms  planned  and  commanded  it. 
Colonel  McNab  for  ibis  purpose  conclusively  represented  them.  How 
could  a  common  soldier  pronounce  or  conjecture  that  the  judgment  of  the 
official  representative  was  erroneous  ?  Sir,  he  had  the  right,  and  was 
bound  to  assume  it  to  be  the  judgment  of  the  colonial  authorities.  And 
who  were  they?  Why,  as  between  them  and  McLcod,  and  for  the  pur- 
poses of  this  question  of  individual  im:nunity  as  between  McLeod  and 
ourselves,  they  were  his  rightful  and  only  Government.  Nice  questions 
may  be  moved  on  the  competency  of  a  colonial  Government  from  its  sub- 
ordinate relations  to  the  imperial  head,  to  set  on  foot  an  enterprise  of 
war.  But  it  is  every  where  conceded  that  such  a  Government  may  un- 
dertake defensive  war.  The  mother  country,  l)y  the  act  of  ?stablishing 
it,  clothes  it  with  the  power  and  imposes  on  it  the  duty  of  defewding  itself; 
and  it  clothes  it  also  with  the  power  of  judging  lor  itself  in  the  first  in- 
stance how  that  duty  shall  be  done.  When,  therefore,  it  resolves  that  a 
particular  measure  of  war  is  necessary  for  its  defence,  and  that  the  crisis 
requires  a  blow  to  be  struck  at  once,  and  without  waiting  for  advice  from 
the  paramount  power  at  home,  it  may  call  the  whole  colonial  population 
to  arms  by  day  or  night,  and  obedience  to  such  a  call  is  as  rightful  as  un- 
avoidable, and  as  cfTective  for  individual  immunity  as  the  obedience  of  a 
conscript  or  an  impressed  seaman.  Such  was  this  oase.  Was  McLeod 
to  say  that  the  colonial  authorities  misjudged  on  the  question  of  necessity  ? 
They  told  him  the  defence  of  the  territory  and  of  the  Constitution  of  Up- 
per Canada  required  this  act.  Did  he  know  better?  Did  he  command 
a  wider  horizon  of  view  ?  Could  he  be  sure  he  had  all  the  elements  of 
a  sounder  opinion  ?  Consider  that  to  the  colonial  residents  the  colonial 
Government  is  every  thing.  It  is  all  of  majesty,  of  monarchy,  of  aristo- 
cracy that  he  ever  sees  in  his  life.  To  that  all  his  duties  appear  to  be 
owing ;  and  consider,  too,  that  the  spirit  of  this  grand  principle  of  indi- 
vidual responsibility  is,  that  bona  fide  obedience  to  his  actual  and  lawful 
Government  on  a  requisition  of  warlike  service  shall  never  be  reckoned 
a  crime  in  any  man. 

I  do  not  mean  to  say  that  the  subsequent  approval  and  adoption  of  this 
act  of  the  colonial  authorities,  by  the  mother  country,  are  not  of  them- 
selves equivalent  precisely  to  a  previous  command  of  the  mother  country. 
Under  the  special  circumstances  I  think  they  are.  But  had  the  destruc- 
tion of  the  Caroline  been  the  act  of  a  mere  mob,  such  effect  could  hardly 
be  ascribed  to  a  subsequent  ratification.  It  is  because  it  was  the  act  of  a 
local  government ;  subordinate  indeed,  yet  competent  to  defend  itself, 
competent  to  judge  for  itself  on  the  mode  of  self  defence,  in  the  first  in- 
stance, and,  in  the  exercise  of  its  own  discretion,  to  call  out  its  subjects  to 
an  act  of  war ;  it  is  because  it  was  the  act,  not  of  a  mob,  but  of  such  a 
Government,  that  it  is  susceptible  of  a  ratification  by  the  imperial  head, 


■.  * 


t       k 


9 

xL     •».,      lint  fnr  the  sauio  icnson ; 
.hich  i.  o„uivalcnt^o  n  P-^--^',,,!!:  t  t:ca»  .overn.cnt 

call,  to  a,n,H;  such  '-^'^^^'^'^l""    '  ";;;;;^^^^^^^^^^^^ 

here  it  has  hcen,  then,  nccordinj;  to  ^^^'X  T^^^^^  u  „•  (he  sovereign 

%l  title  to  personal  «'""--;>' JJf^'f^^^'.^t^       th^    approhation  ren- 
ratify  the  act  of  war  undortukon  by    >'«'"">;        au  horitv  upon  U  ; 
1 !  7tho  war  solemn  by  rejhcln.^  ''^'^^ '^^^  ^^  1^,',!'.^  nurUmiuini.   206 
«o   that    it   obliges    <»!%-  'f  ,;;  3'  :^  act  ol  the  in-livi^lua! 

<'  Hut  if  a  nation  or  a  chief  appioNes  «"     ;7  .        ,        ^y  is  to  consider  the. 
itlh.n  becomes  a  public  ---)-' -y^;^^    7u    oK'l'c  citizen  was,  per- 
nation  as  the  real  author,/  '^^tu'hoA  2  chap,  4,  sec.  74. 
haps,  only  the  •'>«^''''"«'^^'' 'T;'^^^^^^^  ,  (Jovernnunt  conuuaiu  ing  a 

Vou  have  bclorc  y^^^^^^^^^v  to  shoulder  his  naisUet  for  the  d  ^^nce 
subject,  who  was  bound  to  obey,  to  shou^^c^  Pennsylvania  tells  us,  that 
of  his  country.  It  is  true,  t^;;  '^^^f/^^  J^^,^  ,,.,{  conclusion  f.on.  the 
McLeod  was  a  volunteer.  But  he  ^1^\'"'^,^J'  "  ^^  ,,j,,  admitted  doctrine 
tJ:  undoubtedly  '•-^-.^-Jirt^'^e'o-s'  'between  volunteer  and 
of  i.uernational  law,  no  d.s  nction  '^ J^.*^  .^r^.^^t^.,  ^t  page  401,  is  a  di- 
any  other  soldiers.  .  He  will  •'^'"^'^^^Jf  ;^^  J  f  t,  ,•.  can  be  no  distinc- 
rect  authority  for  this.      n  the  ^^^^^^^^^^^^^^  at  first,  lor  a 

tion.     The  regularly  enlisted  sol  l.eic^^^^^^^  a  shorter  term 

longer  term  and  for  a  1  service     the  vo  mtcc  .^  ^^^^^^^  ^^       ^^^^,. 

and  for  a  special  service.  B"^ ';,"\\\"^^^^^^^^^  ^n  the  same  plane  ol  immu- 
tative  public  will,  and  l^?>  V  ^^^wh.'  great  concern  of  all  nations  U  ,8, 
nity  and  hazard.     Consider  sir   what  a  greai  -^^^^  i,,v  on  thi8 

and  of  ours  more  than  a     of^*^;"  '  !^^J,^  '  wiling  and  ready  to  leap  to  arms, 

subject  that  shall  make  their   "\^^^'  ^^  ^^j^     '.^^  of  their  country. 

«t  half  a  moment's  ;-^'';';S't/ase  of  a  Government  commanding  a  sub- 
You  have,  then,  I  repeat,  the  case  oi     u^  ^^.,ji^,„  the 

lect  to  go  forth  to  an  enterprise  of  war.     J^^    '^  j     ^^.j^j^y,  ,ve  all  agree 
erms  and  spirit  of  tb^  .r^^\!;f'";;f  ,U  j^^^^^^  the  pccuU- 

surrounds  the  «"l^''^'-,°*  %^^"l\l'utr^e  v  ce  from  the  general  trade  of 
arities  that  distinguish  this  P.^tticular  se.v  .^  ^^^^^  ^  single  act  of 

^ar  ?     Why,  sir,  tbey  are  said  to  be  these  ^^^     ^^  ^ 

hostihty,  not  preceded  "^r  fo"^^  is  aU  t>"e;  but  for  the  objects  of 
declaration,  and  wholly  unjust.  1  his  ^«/*"  S^jj^  ^t^  ^^d  the  practice  of 
this  inquiry  it  is  wholly  ""^jf 'f^^s  nd^  e'\^es  of  hostility.  War  .s 
n3tions\ecognise  various  ";,?f^.«;,^^^f^  ^t  alwfys  preceded  by  a  declara- 
not  always  general  or  '  P^^^'*^;*'  "^'i^ "^^  single  crushing  blow.  Such 
tion.    It  sometimes  begins  and  ends  with  one  si  g  ^^^^      ^^  ^^^^  ^ 

las  the  attack  on  ^^^P^^-f^'^^.i'b^  single  individual,  under  a  l^. 
limited  to  one  single  act  of  repusals,  uy  a       ^  ^^j^^^^  ,^,3  ghip, 

cense  communicated  to  ^-.^^^"f;^^ ^  ter^o    marque  to  help  himself  to 
•       and  his  own  Government  gvcs  bun  leUer  ^4.^^^^^  any  declaration 

another.  In  point  ol  fact,  t^,°'  ^^J^^^^^X  Aasb.  Modern  history 
at  all,  at  home  or  abroad.  ^  he  bolt  out  ^^^^^^^^  ^^ 
is  full  of  such  instances ;  but  I  spaie  >  ou  i^^^^nity  to  the  soldier 
Bir,  what  1  would  say  is,  that,fo«  the  purposes  ^^^^^  ^^^^^^^  ^^  ^^^ 
and  sailor,  all  these  modes  k«nds,  and  degrees  o  ^^^^^^^,^,1  ,et.on, 
,1  .  L  'rur.^r  nrp  all  and  all  aiii».e  muuca  &  . — ^  ,i,<sv  oer- 
same  ining-      i  "^j  --        .  ,  ,.«onnnsibilitv.     in  i»any  10.115=-  j  --- 


10 

magnanimous,  more  conformable  with  a  strict  and  puncHMous  proceeding 
and  a  technical  law  of  wai  than  others.  Some  of  them  alford  less  ground 
of  complaint  to  the  (Government  assailed  than  others.  But,  for  the  pur- 
pose of  personal  irresp'>nsibility,  tliey  are  all  one  and  the  same  thin}^.  In 
reason  it  must  be  so.  Consider  that  a  leading  object  of  this  principle  of 
immunity  is  the  protection  of  the  unfriended  instruments  of  ambition  or 
patriotism  who  furnish  the  rank  and  file  of  war.  it  is  to  protect  the  com- 
mon soldier.  And  what  an  unavailing,  uncertain,  ensnaring  tning  it  \yould 
prove  for  him  if  his  title  to  it  depended  on  such  shades  of  diversity  as 
these  !  Mow  does  he  know  whether  the  war,  to  which  you  hurry  him 
away  from  all  that  is  dearest  to  him  in  the  world,  is  just  or  unjust  ?  How 
does  he  know  by  what  heralds  of  declaration  it  has  been  preceded  ?  How 
does  he  know  whether  the  desperate  midnight  enterpiise  for  which  you 
have  called  him  up  from  sleep  is  to  be  a  single  enterprise,  or  whether  it 
is  designed  to  kindle  the  fires  of  a  war  that  shall  encircle  the  world  ?  Sir, 
he  knows  only  that  his  own  Government,  in  obedience  to  which  he  was 
bred — that  the  land  of  his  birth— that  the  land  of  his  fathers'  graves,  bids 
him  go  forth  ;  and  that,  if  he  shrinks  for  a  moment  fiom  his  post  when  the 
storm  of  battle  rages  highest,  he  dies  by  the  hands  of  his  othcers  ;  and  he 
goes  forth  relying  on  the  armed  but  manly  justice  of  civilized  war. 

And  so  are* all  the  authorities.  The  Senator  iron  v'irginia  recited  then, 
so  copiously  to  you  last  evening  that  I  ahall  spare  you  the  repetition,  and 
content  myself  with  a  I  eference  or  two.  The  Senator  from  Pennsylva- 
nia and  the  Secretary  of  State  t3ll  you  that  the  attack  on  the  Caroline  was 
unjust.  But  look  into  Vattel^on  pages  380  and  383,  and  Rutherforth,  2d 
volume,  page  546,  and  you  find  that  they  concur  that  the  injustice  of  the 
war  does  not  affect  the  soldier's  title  to  immunity.  If  it  did,  the  nations 
would  at  once  return  to  tlie  murder  of  prisoners  ;  for  was  there  ever  a  war 
in  which  each  belligerent  did  not  think  his  antagonist  in  the  wrong  ? 

But  you  say  this  w.-'s  only  a  single  act  of  hostility  ;  breaking  out  in  a 
time  of  general  peace,  unannoun-^^  ed  by  any  declaration.  So  it  wa». 
But  Rutherforth  expressly  dLclarss  that  this  does  not  v.'ithdraw  it  from  the 
law  of  '"mmunity.  I  read  at  large  the  passage  from  page  548  of  his  se- 
cond volume,  and  commend  it  to  the  meditations  of  the  Senator  from  Penn- 
sylvania. "  Th's  external  lawfulness,  in  respect  of  the  members  of  a  civil 
society,  extends  to  public  wiis  o(  the  imperfect  sort,  to  reprisals,  or  to 
ether  acts  of  hostility." 

Such  is  the  doctrine  of  this  publicist,  vindicated  and  illustrated  by  a 
masterly  train  of  reasoning ;  approved  by  the  heart  and  judgment  of  uni- 
versal civilized  man.  ;\gainst  this  authority  there  cannot  be  placed  one 
solitary  act  of  a  Christian  nation  for  the  last  live  hundred  years,  nor  one 
word  of  any  wiiter  who  undertakes  to  record  the  existing  systems  of  inter- 
national law.  What  is  the  nation  now  on  earth,  or  descended  into  the 
«;raves  of  empire  ;  where  is  the  mode»"n  Christian  nation  that  has  shed  the 
blood  of  a  prisoner  because  the  war  to  which  his  Government  detached 
him  was  informal,  insolemn,  unan',ounced  by  a  declar;:tion,  beginning  and 
ending  with  one  single  act  ?  Call  up  the  nation,  if  sueh  there  is  or  has 
been,  and  let  it  answer  to  the  outraged  spirt  of  law  !  Did  Denmark  claim 
the  right  to  do  such  an  atrocity  ;  iiumbled  and  exasperated  by  the  repeated 
bombardment  of  her  capital  ;  did  that  ancient  and  gallant  race  ever  dream 
of  avenging  the  defeats  of  the  castle  by  the  triumphs  of  the  gallows  r  Did 
Spain,  the  most  formal  the  most  punctilious  of  Governments,  and  adhering 


!'• 


11 

«,e  .0.  .en».™s,y  .0  Uje  s.w  ^a  p..en,ive  ;^;'-^- ^^^ 
Hic3  of  .he  oia  fashions  of  vi.a'a^P'';^"^^  ,_.^^,^„,,,  ,,,!,„  .eUTn.ng  l,om 

•^  No   c  n  you  flncl,  as  1  have  sa.d   ■^J'"'^!,^;^    nlWcUn^^^-    K-cl'',  f 
the  actual  law  of  -'7''  »  j;';'"    l^uUl^y  only  seen>  .0  00  .rtict  «,.  h  .t.        . 
Grotius,  seen,  lo  conflict  n  ith  it.      "'\      .'  ,      •'n(,t  availed  himsell  of,  be 
Fven  these  the  Senator  from  I'o,""?^  \'^"':' ''  ,„s  «onius,  his  studio.,  Ixs 
cau'e  he  k-.o»s  that  Orotius,  aa.mraWo   lot   h      .      ^<^^^^^  ,,,„  ,.,„  j^- 
™s\  en'a.sed  and  excellent  sp.n  ,   .ved  >f°  ^J*  ^^       ,ii,,„„e„t  of  his  own 
veTopm  nl'f  his  o«n  grand  r"""^^^^^^^,  U  been  slowly  bu.l 
Bh  lanthropic  v^ishes.     '1  ho  «'".  "f, '■'"  "  ,", ,-0  recourse  to  writers,  far 
Csince  his  time,  and  to  learn  it  we    '"="  ^^.^  ;„  teins  able  to  record 
hfs'rferiors  in  capacity  and  learning,  but  1mm  o^.^      ^,         „^ 

Aeame. orated  theory  and  pract,«.  ol  »  be  ^  "^  >„  ,|^^  ,„„,„,,„,  I  have 
cneoT these  can  you  cite  »"y''''"|;",i°,'ir  thought  he  had  discovered 
relied  on.     The   Senator  Irom  ^^"nsylY.  j,      ,  ^^^|^  3^^  ,!,„,„„ 

ome  such  doctrine  »»  h«=  "^'^t,    f  om  V  rR  "ia  was  entirely  accurate  in 
fiT  nf  Vattel.     But  the   Senator  V°'"  .;''>.    refers  to  the  ease  of  all 

h  sVbleivattn  upon  this  pass.ge  •  '  -^,^'\  .•^'Sv,  .Lent,  and  to  nothins 
dividual  acting  withotitautho         1  omta^^^^^^^^^^^^^l^^  ,  j 

else.     And  then,  m  suppoit  ol  '  '^  l™"  ^,,„,  requires  to  be  preceded 

that  as  the  law  ol  nations  is  ho  den  "»«.  "°  ,^  \,,,  ,f  Nations,  12  ; 

bv  a  declaration.      Martens,  ?'''    edition.     Defensive  war  never  re- 
l^tof  Kent's  Commentaries  .-,  2d  e    ton  ^^^  ;,,,,,  jefcnstve  war 

nuired  it  according  to  any  'h^"')  •      ; •'"  ,,;,„  „,,(  he  was  summoned  fo   h. 
to    hich  McLeod'sGovernmen  a,su.ed  .iim^  ^^^^^.^„^^  ^u.Uy 

'The     ant  of  declaration,  theieloije^^^^  ,„  j^^ge  better 

If  ,l,e  indecent  and   "^-■;;^'';,:','',:^%'f  resorting ^o  a  particular  measure 

'r  ^>:d?e:=fo"  f  e^ 

'„°r''>;tdfarve'S;it;Vr:?  victories,  ay.ahuudredyearso.     .0. 

tnrv   would  not  wioc  away.  ■  y.   ^I^en,  in  point  of  m- 

""Vhe  concessl,.n  of  the  Sf -f// "^ ^'"j!  .„"  l^^ni;  thinks  he  ought  not 
ternational  law.  But  the  Senato.  f'™j5,",",j  („  the  second  place  that 
'.rhave  made  it,  -is"  or  w..n  j     <  jbmi.,.^_^^  ,^^  ,^^^^  ^^^^,  „„  „,  ex- 

tip  nuffht  to  have  mane  it,  am.  m^ 

.„il\,  .    it  was  made  and  acted  on.  ,     ,2,(,  of  March  last. 

What  v"  he  duty  of  the  Secretary  «  SWe  °n  H  e  ^^^^  ^^ 

when  McLeod,  guilty  of  no  -'^""'l^l^^^ZlL,  had  been  indicted, 
York  by  participation  in  the  f  ■>^'^  °"  '  !^  „„  (he  22d  of  March,  S'S  lor 
Lirisoned,  and'  ordered  or  t™'  °,^^  ""^  ,"  reasonable  anxiety,  lest  he 
such  crime,  under  circumstances  J'f''>  'f  j„„s  popular  excitement; 
Jght  fall  a  victim  to  ^  »»'.""  ""came  fo  ward,  announced  the  doctr.ne 
.  -'«'-."-,S"2^;;;wra'l.row   ;»  beV.,  a„d  Oemande    fa 


Her  Msijesty's  n™-''!,'^,''''^^  ™ be  iu"  ,  and  demanded  that 
-„f  international  lai,  which  we  ?!  kri^nJnnit  rd;r  it  >  What  was  .he 
McLeod  should  be  holdeti  eni.t.e-  to  J 


!'• 


12 

SRcretary  of  State  to  do  ?     Should  he  have  wrapped  his  diplomatic  mantle 
about  him  and  have  answered,  Sir,  I  do  not  know  about  your  doctrine  of 
international  hw ;  the   American    Government    is   not   advised    exactly 
■whether  it  may  bans;  prisoner?  of  war  or  not ;  besides,  it  happens  to  have 
nothin"-  at  all  to  do  with  the  matter  :  Mcl.eod  ic  in  the  hands  of  the  State 
of  New  York  ;  a  great  and  patriotic  State,  Mr.  Minister,  giving  forty  odd 
electoral  votes  ;  slie  will  do  what  is  right ;  if  she  hangs  him,  why  then  we 
shall  know  that  he  deserved  it  ;  and  if  she  does  not,  so  much  the  better 
for  himself.  Should  he  really,  so  saying,  have  bowed  the  minister  out,  and 
have  retreated  into  an  Epicurean  heaven  of  indifference  and  noncommital, 
until  he  and  you  were  startled  by  the  thunder  of  an  enemy's  cannon— a 
music  I  acknowledge  at  which  a  brave  nation  has  no  great  objection  at 
any  moment  to  wake  up  ?     No,  sir.    I  submit,  on  the  contrary,  that  the 
duty  of  our  Government  was  perfectly  clear  ;  to  avow  its  acknowleag- 
ment  of  the  doctrine  of  internaliond  law  advanced  by  the  minister  ;  to  de- 
clare its  purpose  to  do  what  it  constitutionally  might  to  secure  McLeod  the 
benefit  of  it ;  to  do  it ;  and  then,  having  removed  this  disastrous  interlo- 
cutory controversy  out  of  the  way,  to  demand  satisfaction  at  once  of  Eng- 
land for  the  burninji:  of  the  Caroline,  as  that  language  is  understood  among 
rations  of  the  first  class.     To  simplify  the  matter  somewhat,  suppose  that 
McLeod  had  at  that  moment  been  in  our  jail,  in  our  courts,  instead  of  those 
of  New  York,  then,  I  repeat,  it  was  most  palpably  our  duty  to  have  con- 
ceded the  proposition  of  law  ;  to  have  expressed   our  assurance  that  the 
courts  would  acquit  him  of  the  accusation  of  crime  against  our  municipal 
codes,  and  even  that  the  Attorney  General  representing  the  Government 
would  enter  a  nolle  prosequi^  thus  committing  him  to  the  disposal  of  the 
Executive  as  a  prisoner,  o'-  a  quasi  prisoner  of  war,  or  whatever  else  his 
legal  character  might  be  ;    and  then  and  thus  having  washed  our  hands 
clean,  and  set  ourselves  right  before  God  and  man,  to  call  this  island  mis- 
tress of  a  thousand  ships  of  war  to  instant  account. 

That  this  was  the  duty  of  our  Government  is  too  plain  to  be  debated. 
Was  it  not  its  duty  to  cause  this  nation  to  keep  the  law  of  nations  ?  Was 
it  not  its  duty  to  be  just?  And  was  not  this  bare  justice  to  McLeod,  to 
England,  to  the  universal  spirit  of  humanity  ?  Was  it  not  its  duty  to  pre- 
serve peace  if  it  might  be  had  with  honor,  and  if  war  must  come,  to  se- 
cure us  one  in  which  a  Christian  people  might  draw  its  sword  ?  Now,  sir, 
the  difficulty  was,  that,  on  the  12th  of  March,  we  were  in  an  eminently 
false  position.  With  ample  materials  of  the  highest  tone  of  complaint,  per- 
haps even  of  reprisals  or  war  against  England,  for  herconduct  towards  us, 
here  she  was  holding  us  up  before  all  the  world,  for  a  little  piece  of  our 
own  conduct,  in  which  we  were,  or  were  apparently,  just  about  to  be  en- 
tirely in  the  wrong.  With  the  burning  of  the  Caroline,  with  the  ground- 
less yet  pertinacious  grasp  of  our  territory  in  the  Northeast,  with  the  re- 
peated seizures  and  searches  of  our  ships  at  sea  to  complain  of  and  go  to 
war  about,  if  a  wise  and  moral  people  had  a  taste  for  such  entertainment, 
we  were  actually  just  about  compelling  England  to  declare  war  on  us  for 
hanging  one  of  her  soldiers  because  he  did  not  run  away  from  his  colors ! 
Why,  sir,  this  was  not  a  position  for  men  of  sense  to  stand  on  long  enough 
for  fler  Majesty's  minister  to  pull  off  his  hat.  Policy,  honor,  justice,  hon- 
esty, humanity,  all  required  us  to  quit  it  in  an  instant,  "vhy  give  Eng- 
gland  such  a  perilous  advantage  as  to  make  up  a  false  issue  like  this  ?  Why 
unite  all  her  classes,  and  every  man  in  every  class,  in  what  they  must 


13 


>    Why  alienate  the  sympathies 

'         •'  .  .  11    ..o    o    r>iim 


of  the  world  hy  such  a 


he  is 


.  \. 


think  a  holy  war  ?    Why  alienate  ^'^^  syup-."^" 
thins  ?     Why  commit  a  blunder  as  well  as  a    nme  J^^^^^  ^^^^ 

ebly  armed'that  has  hi.  quarrel  J^^t  ?    Why  shoc«.  ^^^^^^^  ^    g.^^ 

of  America  by  turning  away  ^^^"^ J"S^J^  of  this  country  would  choose  to 
if  you  speak  of  blows,  1  believe  t»e  people  oil  J  ^,^^^^^.  ^j^^^ 

b/seen'aiming  full  at  the  front  ^/j-^P^.^f.^.l^l^d cuffed,  to  the  gallows, 
drao-ein''  the  servant,  unarmed,  ""'''^""^V'  „„k  .,  field  by  a  nation  ol  gal- 
'K^ficel  that  no  laurels  are  to  ^.^^^^''^^yl^^i  sLk  those  laurels 
lant  men,  of  men  of  honor  and  ot  C-^nst  an  •  »  ^^  ,.j^^^^  ^^  ^t  battle 
ather  where  they  do  -^^"''^^^^  S^^^^  "a  t Lu  the  late  Chief  Magistrate  oh- 
when  it  rages."  Sir,  I  ^yas  J",    ?7^^^^^^ 

served  to  a  friend,  some  time  dunng  ^^^^  J^J^^  \  °  ^^^„  ,„d  money,  he  had  no 
IZ  in  a  just  cause,  if  Congress  wulc^gvoh^^         ^^^^^  ^^^ 
objection  to  going  into  a  wai   ^ut      h>  •„        ,         ^  Alexander  Mc- 

S"  rr  a;;:^^-hni;lnci:n^aon  of  the  Uind,  brave,  and  ^ust  old 

awaiting  trial  in  the  courts  "     '^^^^^  ^^^^.^^^         adm^it  your  proposition 
to  the  demand  of  Her  Majesty '^  mm  stei  ta  ^^^^^^^  ^^^^^^^^  ^^^^ 

of  international  law  ;  we  are  not  ^"^l^;  °  ^"  ^^^  Uie  fanuliesof  the  earth  to- 
as  not  to  know  the  elements  o  the  coda       1^^^^  ^^^,,  ,,     fe 

crethcr.      From  this  accusation  ot  mun  cip  ^^.^  ^^^^.^  ^     ^e^i 

S  now  will  you  in  y°-i-.;^;,t\Te   Mnrosty's  fo?-ces,atthe  dead  hour 
invaintoknow)  onwhatp  ctinceuei       J    J^^^^^        .^^^^^^^  j       ,  g^il 

^^^Xpened,  however,  tj- -- -^^^^^^  ^^^^^i 
McLeod  was  awaiting  his  tn  I  !,"  ' ;  ^^^^^^^ .  .^j  the  distinguished  Sena- 
New  York  prison,  under  ^^^^\  J^^y^/i^i,  ^^usc,  at  least,  the  Government 
tor  from  Pennsylvania  insists  ^'^^  V^^  ^'^^^  ^ j  the  demand,  but  just  have 
should  have  done  "«tl^l^t•^l^v  and  c  "it  his  law  to  New  York  VVe 
directed  Mr.  Fok  to  tell  his  sto  y  ^f^^'^^^.^^^  ,inciple  ;  we  should  not 
should  have  made  no  concessions  o^  tho  o  J  ^^^^^^  ^^ate  the  official  e vi- 
have  dared  to  communicate  to  tj^^  ^xe^^^^  ^^^    ^^j  ,,,  own  opinion 

death,  among  themselves.  ,,    ^  ..^eat  and  admirable  State  un- 

Sir  the  position  McLeod  stood  in  toJ_l^^^^^^^^^  .^tion  of  the  General 
doubtedly  limited  the  rights  and  ^»f  •\'^^;^:^ii' '^at  we  would,  were  we 
Governm^ent.     But  because  we  covdd  n^t  do  all  tb^  ^^   ^  ,^1 

not  to  do  the  little  ^^J%'f^.  New  York  ?  How  ?  By  desiring  to 
have  we  offended  ?  The  State  ot  f^^'^^'  ,,  i,,ge  and  so  precious 
secure  to  this  prisoner,  to  whose  ^^  \"^Xve  it.  New  York  was  pro  { 
were  attached,  a  fair  trial  ?     ^f^'  l^'^^'^^^^^    ^f  the  administration  of  cr.mi- 

ceeding  against  him  in  tl- ord    -      ,°^^   ,'  him,  which  in  /l-^^P^^^^^ 
nal  law.     To  recognise  ^^^   J^n  ^k  ^^^,  ^.^  ^^^^  ^^,^^^  New 

--- S^!,^^r  ^f  tt^:' soc^l  privileges-a  f.ir  trial :  was  there 
X  orii.  wisut"  !'^>  -' — J 


14 


in  this  any  thing  to  alTront  her  pride  of  character  ?  any  thing  to  ruffle  a 
feather  in  the  phune  of  her  acknowledged  prerogative 


But  we  souglit  to  opei 


ate  on  the  Government  of  that  State  by  commu- 


nicating  our  opinion  on  the  points  of  international  law,  and  in  effect  ad- 
V  3inl  U  what  course  to  pursue.     Well,  sir,  does  the  conveyance  of  advice 
ImpU"  disrespect  towards  the  object  of  it,  or  a  distrust  of  h.s  integrity  or 
his  capacity  ?     Does  it  prove  any  thing  more  than  that  you   ee    a  deep 
solicitude  that,  in  a  great  crisis  of  his  fortunes  and  yours,  he  sl.a  1    or  his 
sake  and  yours,  make  no  mistake  ?     Sir,  here  was  a  State  with   he  phjs.- 
cal  power  of  engaging  you  in  a  national  war.     If  hostilities  followed  the 
execution  of  Mcleod^  it  would  not  have  been  a  war  on  New  York  alone 
but  on  Louisiana,  on   South  Carolinu,  on  Maryland,  on  Massachusetts. 
If  they  should  be  more   immediately  aimed   at  her,  your  valor  and  your 
treasure  must  have  united  with  hers,  for  her  defence.     A  State,  then, 
might  plunge  you  in  a  general  war;  and  yet,  under  the  Cons  itu tion,  no 
St.te  hastl^  legal  and  direct  right  to  make  a  war  for  you  or  for  herself. 
She  has  no  right  to  terminate  it,  by  treaty,  alter  it  has  begun.     1  hat  great 
prerogative  is  yours  alone.      Those  transcendent   imperial   powers,  by 
which  and  through  which  we  are  known  to  the  nations,  are  your  pov;ers. 
And  now  is  it  possible  that  a  Stale,  prohibited  by  the  Constitution  from 
making  war,  from  making  treaties,  may  consummate  an  act  for  which  we 
must  a^nswer  with  our  best  blood,  on  the  field  and  on  the  deck  ;  and  ye 
that  this  Government,  clothed  by  the  Constitution  wMth  all  these  great 
trusts,  charged  with  the  conservation  of  peace,  with  the  conduct,  expen- 
ditures, and  hazards  of  war-this  Government,  whose  flag  alone  it  is  that 
^vaves  over  the  universal  American  family,  wheresoever  a  member  ol  it 
wanders,  on  )and  or  sea-that  we  cannot  respectfully  approach  any ^  ate 
with  the  communication  of  advisory  suggestion,  and  deliberate  with  her 
on  a  subject  of  great  novelty,  difficulty,  and  importance  ?     I  have  no  great 
opinion  of  such  transcendentalism  of  delicacy  as  this-good  for  winning 
electoral  votes,  possibly,  but  unfitting  a  man  or  a  Government  for  manl> 
and  useful  action.     Sir,  New  York  is  ably  represented  here,  by  gentle- 
men of  both  political  parties,  and  they  can  answer  for  her;  but  1  be  leNe 
she  will  lauiih  to  scorn  the  suggestion  we  hear  of  out  of  doors,  that  any 
disrespect  h^as  been  shown  or  felt  for  her  Government  or  her  people   {or 
her  judicial  learning,  or  for  the  temper,  feelings,  and  views  ot  any  portion 
of  her  widespread  community.  .      ,.    .       .      ,        r     *u:c  Pnv 

In  iudgin-  on  this  part  of  the  subject,  in  this  inquiry  how  far  this  Gov- 
ernment ha.^^  exceeded  its  powers,  invaded  State  rights,  or  betrayed  indec- 
orous anxiety  and  haste  to  save  this  person  from  the  gallows,  I  ask  you  to 
take  one  thing  into  your  consideration^     Sir,  it  is  no  answer  at  all  to  Eng- 
land to  say  this  is  the  affair  of  New  York.     She  knows  nothing  even  of 
that  magnificent  Empire  State  as  a  separate  State.     We  do  not  allow  her 
to  know  any  thing  of  any  State  by  our  Federal  Constitution  »"  that  capa- 
cilv.    We  do  not  allow  her  to  have  diplomatic  access  to  any.      1  o  attempt 
to  make  a  treaty  with  any  would  be  clear  ground  of  war.     VVe  inform  her 
th^.t,  hv  our  Federal  Constitution,  the  foreign  relations  of  New  York  are 
reposited  here  ;  and  if  she  has  any  cause  of  complaint  against  her,  she 
will  please  to  leave  her  card  at  our  door.     England   of  course   all  the 
nations,  must  hold  us  to  this;  and  if  any  State  affords  her  ground  of  war 
it  is  against  us  that  we  ourselves  direct  her  to  turn  her  steel.     At  the 
same  time,  therefore,  that  our  Federal  relations  to  New  York  hindered 


I. 


15 

„s  from  doing  much,  our  obligation  on  the  \-vs  of  nations  to  ^^^^If^^o 
do  every  thing  was  not  in  the  least  degree  essened  b>  hem.  ^^e  clear 
"  •'.,    ,    ^^  ,-„t   thprpfnrp    \v«s  to  do  what  it  did  ,  to  appiize 

'"^MrTresWont,  I  l.avc  one  dut,  more  .0  perform,  not  so  much  to  the 

SerrL;:fo;s,ateas.on,o^^^^^^^^^^^ 

have  SMd  tha   ,t  «^s  tl  e  busnie  s  o  ^^^^^  McLeod,  to  demand 

ESn;  S"fdra':d"'4t  upon  .y  ^^^f -'-trin'r  Seme".; 

„,:i  do   he  ^'^c'-el"  y  o    ^,'"'"i,  ae'voled  to  the  peiformance  of  what  he 
part  of  '^'^l^X^VtliUobth^s  most  agiieable  duty.     They  will 

but  degrade  the  seat  vvh.ch     ho M  n   h.s  h  S    P     e  by  p  b  ^  ^,  ,^^_^  ^^^^^ 

any  man,  even  of    ""v,f''''ilUvth.t  the  ability  and  spirit  with  which 
he  no  apology  at  all.     Yf^'     ""      ^-X'/^/e  among  the  ablest  diplomatic 

irafpra^   hts-^  that  England  h.,  no  r,^^^ 

'e"  .i:h  Er  .Wll'teU  us':  'ain'at  t  end  of  three  more  years,  that 
he  undo  stood  our  claim  for  satisfaction  had  been  w.thdrawn 

That  this  argument  is  ably  conducted,  you  al    admit.     But  'he  couise 

^"th;  Son.tor  from  Virginia  [Mr.  Rives]  last  evening  read  to  as  a  por- 
series  of  patriotic  service,  to  speak  for  himsell . 


16 

*•  Under  these  circumstances,  and  under  those  immediately  connected  with  the  transaction  itself 
it  will  be  for  Her  Majesly'H  Government  to  show  upon  what  state  of  facts  and  what  rules  of  na- 
tional law  the  destruction  of  the  Caroline  is  to  be  defended.  It  will  be  for  that  Government  to 
show  a  neccsuity  ot  self-dcfi-nce,  instant,  overwhelming,  leaving  no  choice  of  moans  and  no  mo- 
ment for  dcliberition.  It  will  le  for  it  to  t,!  ow,  also,  thnt  the  local  authorities  of  Canada,  even 
supposing  the  necessity  of  the  momiiit  iiuthorized  them  to  enter  the  territories  of  the  United  States 
at  all,  did  nothing  unreasonable  or  excessive ;  since  the  act,  justilicd  by  the  necessity  of  self-de- 
fence, must  be  limited  by  that  necessity,  and  kept  clearly  within  it. 

♦'It  must  be  shown  tbat  admoiiiliou  or  remonstrance  to  the  persons  on  board  the  'Caroline* 
was  impracticable,  or  would  have  been  unavailing;  it  mnst  be  shown  that  day-light  could  not  bo 
waited  for;  that  there  could  be  no  attempt  at  discrimination  between  the  innocent  and  the  guilty  ; 
that  it  would  not  have  been  enough  to  seize  and  detain  the  vessel;  but  that  there  was  a  necessity, 
present  and  inevitable,  for  attacking  her  in  the  darkness  of  the  night,  while  moored  to  the  shore, 
and  while  unarmed  men  were  asleej)  on  board,  killing  some  and  wounding  otliero,  and  then 
drawing  her  into  the  current,  above  the  cataract,  setting  her  on  fire,  and,  careless  to  know  whether 
there  might  not  be  in  her  the  innocent  with  the  guilty,  or  the  living  with  the  dead,  committing  her 
to  a  fate  which  fills'the  imagination  with  horror.  A  necessity  for  all  this,  the  Government  of  the 
United  States  cannot  believe  to  have  e.\iated." 

To  these  hands,  for  one,  I  am  willing  to  entrust  the  rights  and  the  fame 
of  my  country. 

Mr.  President,  I  concur  entirely  with  both  the  Senators  who  have  pre- 
ceded me  that  there  need  be  felt  no  apprehension  of  a  war  with  England. 
Like  them,  I  neither  expect  nor  desire  it.  Heaven  forbid  !  I  know  of 
nothing  between  the  Govcrnnjents  that  ought  not  to  be  and  may  not  be 
easily  and  honorably  composed.  But  whatever  may  befall,  I  claim  it  as 
the  praise  of  this  /\dministration,  that  it  has  had  the  manliness  to  seek 
peace  by  justice  ;  and  thai,  if  war  shall  come,  it  has  done  all  that  man  can 
do  to  enable  us  so  to  go  into  it  that  we  may  have  the  approval  of  our  own 
consciences,  self-respect,  the  moral  judgments  of  the  world,  and,  may  I 
not  add,  the  God  of  our  fathers  with  us  in  the  conflict. 


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